The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Thursday, April 12, 2007

Trial dogs...

There isn't a better District to be a lawyer (or to be a blogger!) -- we've got the most interesting cases and the most trials. Jose Padilla starts Monday and I've been writing a bunch about that. But right now, there are two other very high profile trials proceeding.

The first is the Kenneth Wilk cop-killing death penalty trial before Judge Cohn. From reading the coverage (Vanessa Blum is covering it almost every day -- here's the latest article -- and here is Nikki Waller's coverage), it looks to me like the defense may need to focus on saving this man's life instead of going for the NG. It's a very difficult decision in a DP case -- do you go full guns blazing for the NG and perhaps alienate the jury or do you try to keep the jury sympathetic enough to your client so that they don't want to kill him. I've never done a death penalty case before (unlike Wilk's very experienced DP lawyer Bill Matthewman) so thankfully I haven't had to make that crazy hard decision.

Then we've also got the Gustavo Dominguez, sports agent smuggling case going on in Key West before Judge Moore. The Defendant has taken the stand (according to today's Herald). There is no better drama than that. It's also the most difficult decision a defense lawyer makes in any trial. Apparently the defense is that Dominguez paid the drug smuggling convict $225K not to help smuggle but because he was afraid for his and his family's life. If the jury believes him, he'll walk. If they don't, bye bye. Forget about reasonable doubt when the Defendant testifies.

8 comments:

Anonymous
said...

The REG Building on any DUI Monday. The US Attorney should mandate that the AUSAs get cross sworn and go try one or two double refusal cases. Then, they will know what it is like to be slapped around the courtroom a bit.

I would love to watch some of those AUSAs go do that. There are only a couple I can think of that could handle the job.

Got to disagree with you David. I've tried death cases. And in my humble belief and experience, the worst mistake you can make is giving up on the guilt phase. You can incorporate questions designed to elicit responses that will assist in the penalty phase. But you should never "focus" on saving a client's life in phase one, because the best way to save his life is to challenge the evidence every step of the way.

Just my humble opinion in the matter.

Not much of a quarrel with you about the decision to have a client testify except this- in most cases, it is my opinion that if you can't feel secure about winning the case after the prosecution rests, you probably should not be proceeding to trial. It is the rare client that can save his/her own skin. And if the client needs to testify, that should also be decided prior to trial. Of course these are my general rules, and you know the saying about the best laid plans of mice and men.....

You may be right Rumpole. I just don't know how that psychology works. You push really hard for a NG and then say to the jury afterwards -- well, at least save his life. I'm not sure. As I said, I haven't had to do one before, so I don't purport to know the answers.

As for hard and fast trial rules -- that's where I disagree with you. You have to be flexible at trial. I don't think lawyers should have hard and fast strategies about trying cases and decisions should not usually be made before trial. That's how you become wedded to a particular course of action, which can spell disaster if trial doesn't go as planned. And it never does -- especially in fed land with no discovery...

I agree with the need to be flexible at trial, although I don't like it when a prosecutor gets me off my game. It should be the otherway around. As for the penalty phase, that is why all DP cases have two defense attorneys. The penalty phase attorney sits there like a lump on a log unless and until the trial gets to phase two. And then the lead lawyer sits there looking glum while his or her partner tries to save the client's life. It's worked for me, although I can tell you I cannot stand doing penalty phase work. I like to slug it out for the NG or lessers.

The Southern District of Florida blog was started by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals. He is a former law clerk to then-Chief Judge of the District, Edward B. Davis.